TREATIES OF THE UNITED STATES

III.269.1

TREATIES OF THE UNITED STATES. Nov. 29, 1775, the continental congress appointed a committee of secret correspondence, charged with the duty of corresponding with the friends of the colonies in other parts of the world. March 3, 1776, this committee instructed Silas Deane to go to France, and ascertain from M. de Vergennes "whether, if the colonies should be forced to form themselves into an independent state, France would enter into any treaty or alliance with them for commerce, or defense, or both." Sept. 17, 1776, congress adopted a plan of a treaty to be proposed to the King of France. This plan embraced the following political ideas: 1. Equality with natives in the payment of duties or imposts, and the enjoyment of privileges, immunities, and exemptions in trade, navigation and commerce. This was not incorporated in any treaty actually concluded by the United States until after the peace of 1814. 2. Equality between France and the United States in colonial export duties. 3. Exemption from the droit d'aubaine. 4. That on the surrender of contraband of war by the commander of a vessel taken on the high seas in time of war, the vessel shall be allowed to proceed on its voyage. 5. That each party may capture goods the property of citizens of the other when found in enemy's ships in time of war. 6. That vessels and property rescued from pirates shall be restored. 7. That the ports of each shall be open to the prizes of the other without payment of duties, but shall not be open to the prizes of the enemies of the other. 8. That if a war breaks out, citizens of one power, residing as merchants in the dominions of the other, may have time to close their business and remove their properties. 9. The citizens of neither power can take out letters of marque against the other in time of war. 10. Citizens of each may trade with enemies of the other in time of war in articles not contraband, and free ships shall make free goods except as to articles contraband. 11. Vessels of either coming into ports of the other, and not wishing to break bulk, shall not be obliged to do so, in the absence of cause for suspicion. 12. Merchant vessels of one power on the high seas may be visited by vessels of war of the other for the purpose of examining their sea letters and passports. If these are found correct the cargoes can not be examined. The draft also contained several provisions respecting the contemplated alliance with France.

III.269.2

—On Feb. 6, 1778, two treaties were concluded in Paris with France: a treaty of alliance, and a treaty of amity and commerce. The treaty of alliance contained the usual provisions in regard to mutual action in time of war and in making peace, and, in article xi., a mutual territorial guarantee, which afterward became a subject of contention. France guaranteed to the United States the whole of their possessions: the United States, in return, guaranteed to France its then present possessions in America, and such as it might acquire by a treaty of peace. The treaty of amity and commerce was somewhat less liberal than that proposed by congress, and contained the most favored nation clause.

III.269.3

—Oct. 8, 1782, a treaty of amity and commerce was concluded with the Netherlands; April 3, 1783, a similar treaty with Sweden; Jan. 20, 1783, an armistice with Great Britain, followed on Sept. 3, 1783, by a definitive treaty of peace with that power; Dec. 10, 1785, a treaty of amity and commerce with Prussia; January, 1787, a treaty of peace and friendship with Morocco; and, Nov. 14, 1788, a consular convention with France.

III.269.4

—These several treaties, concluded prior to the adoption of the constitution, are remarkable for the directness and freedom from doubt with which they assume sovereign powers to be in the central government: as in 1, the restraints upon duties, charges and fees in the ports of the several states; 2, the prohibition of the exaction of the droit d'aubaine in the states; 3, the permission to aliens to own and dispose of real estate anywhere in the United States; 4, their right to reside and do business in the states on an equality with natives; 5, their right to worship after their own faith; 6, the right of foreign consuls to exercise judicial functions in the several states over the estates of their countrymen deceased; 7, their right to exercise police over vessels of their nationality in American ports, to arrest the officers and crews of the vessels, and to try and determine all disputes between them. They are also remarkable for humane provisions respecting the treatment of prisoners of war, and the exemption of women, children and non-combatants from the hardships of war, which have not yet been universally accepted.

III.269.5

—The treaty of peace with Great Britain recognized valuable fishing rights on the Grand Banks, in the gulf of St. Lawrence, and in the bays, harbors and creeks of Nova Scotia, the Magdalen islands and Labrador, as belonging to the citizens of the United States in common with subjects of Great Britain.

III.269.6

—When Washington became president, he found the northern frontier of the United States occupied by British military posts: at Detroit, at Mackinaw, at Buffalo, at Niagara, at Oswego, at Point au fer, at Dutchman's point, and even in the interior of Ohio. On the south, Spain had established a station at Natchez, and was pushing forward to Vicksburg under pretense of a treaty with Indians claimed to be independent. Both were intriguing with the Indians, evidently believing that the United States must disintegrate, and desiring, as nearest neighbors, if not next of kin, to obtain in the dissolution as much as possible. In this state of things the French revolution broke out; England took up arms against France; and Spain, on May 25, 1793, joined England. Meanwhile France, through an injudicious and irritating envoy, was making trouble for Washington, by attempting to fit out privateers for French use, and to rekindle the dormant feeling of hostility to England. In addition to a hostile occupation of our frontiers, England was seizing and confiscating our nascent commerce under pretenses that had no right but that of force. Washington was pressed to cast the fortunes of the United States on the one side or the other of the great struggle. In this emergency he sent John Jay, the chief justice of the United States, to London, as a special envoy. Nov. 19, 1794, Jay concluded the treaty which has since borne his name. It provided for the withdrawal of the British garrisons; for the settlement of some disputed points in the boundaries; for a joint commission to determine what payments should be made by the United States to Great Britain on account of the claims of British creditors; and for another joint commission to determine what payments should be made by Great Britain to the United States on account of illegal captures. It reasserted the power of the federal government over the subject of land titles in the states, made provision for consulates, contained a provision (the first one) as to the extradition of persons charged with crime, and provisions for regulating commercial intercourse. It contained no disavowal of the arbitrary principles which Great Britain had asserted, no provisions that free ships should make free goods, and it granted to Great Britain the privileges for her vessels of war and prizes which France enjoyed under the treaty of 1778. This treaty was disclosed by a senator. Its publication created an intense excitement, which lasted until the appropriations for carrying it into effect had passed a subsequent congress. I think it is the judgment of history, that, with all its shortcomings, it was a wise measure. We came out of the war of independence poor, with a great debt, with a depreciated paper currency emitted by the states and emitted by authority of Congress, with a paralyzed business, and with a narrow ribbon of population along the shores of the Atlantic, of uncongenial pursuits, with great difficulties of communication, and with no common historical traditions prior to the war. With the greatest difficulty the aversion to a stronger central government was overcome. The constitution started its operation in time of peace, among a people a large minority of whom, if not an actual majority, was averse to it. Jay's treaty secured a certainty of a longer time of peace for it to take root and grow. If we had not concluded that treaty, we might have been bound in honor to go to war with England at that time. I can not see what the result of such a war would have been: but I can see that by putting off taking part in the great struggle for eighteen years, we secured precious time for the people to become accustomed and attached to the new form of government: and on this I found my opinion that the measure, however intrinsically defective, was a wise turning point in our history.

III.269.7

—Partly in consequence of the conduct of Genet, partly in consequence of our refusal to abide by the guarantees of the treaty of 1778, and partly in consequence of the conclusion of Jay's treaty, a diplomatic rupture took place with France, accompanied by acts of hostility on the high seas. Congress, on July 7, 1798, enacted that the treaties and consular convention with France were no longer regarded as obligatory. This state, neither of war nor of peace, was terminated by a treaty in 1800, which was followed, in 1803, by three conventions one for the cession of Louisiana, with a provision putting the commerce of France on the footing of the most favored nation in the ceded ports; one providing for the mode of payment of 60,000,000 francs to France by the United States and one providing for the further payment by the United States of 20,000,000 francs to citizens of the United States who had claims against France. The claims excluded from participating in the division of this sum, constitute what are known as the French spoliation claims.

III.269.8

—These treaties were assailed at the time of their conclusion, both on account of the acquisition of Louisiana, and of their not providing for the payment of the spoliation claims. Without expressing an opinion on the latter point, on the broader question I may say that history fully justifies the wisdom of a measure acquiring for us the mouth of the Mississippi. Jay's treaty and these treaties had a marked influence on the political history of the country. They mainly contributed to wrest the federal government from the hands of those who favored the adoption of the constitution, and place it in the hands of those who opposed it. They thus converted a jealous and astute oligarchy in the south from opponents into supporters of the new form of government, and made it their interest to preserve it during the long years that they held power. When the day of change at last came, the constitution had ceased to be an experiment. It had traditions in the national heart deep enough to protect it.

III.269.9

—One other treaty of this period, the treaty of Oct. 27, 1795, with Spain, has survived to this time, and proved serviceable in recent political history. It contained agreements not to embargo the vessels or effects of citizens of either power in the territories of the other, and that, when arrested, persons should be prosecuted according to the ordinary forms of law, and have the right to employ agents and attorneys, and to have access to them. In the recent insurrection in Cuba, the insurgents had on their side everything to appeal to our sympathies. They were colonists, contending for self-government; humane men, contending against brute force; abolitionists, struggling against the re-establishment of slavery. Persons, said to be citizens of the United States, were seized and imprisoned without law, and denied access to counsel. Their properties were embargoed, and their incomes sequestrated. The treaty of 1795 gave us means of relief without resort to force; and afforded the government of the peninsula an opportunity of yielding to our demands without risk of revolution or of being upset. It requires but little imagination to conceive the evil effects upon the United States of a war resulting in the conquest of Cuba, and its admission into the Union subject to the conditions of the constitution as affected by article XV. of the amendments.

III.269.10

—The Napoleonic wars swept away all our commercial treaties, except the treaty of 1795 with Spain. The Dutch subsequently contended that the treaty of 1782 with the Netherlands survived, but the American government contended otherwise successfully. Peace was concluded with Great Britain by the treaty signed at Ghent, Dec. 24, 1814. This treaty contained provisions for settling some parts of the boundaries that were in dispute, and a declaration against the slave trade; but it was silent on the subject of impressment and change of allegiance, and of the rights in the fisheries. On the latter point, a correspondence between John Quincy Adams and Lord Bathurst ensued. The former contended that the United States received their interest in the fisheries on the division of the British empire at the peace of 1783, and, therefore, could not be deprived of it by the abrogation of all treaties caused by a war. The latter maintained that the rights of the United States depended upon the existence of the treaty, and fell with its abrogation. This view was practically maintained. The treaty was criticised because it did not contain an abandonment of the right of impressment. This could not have been obtained from Great Britain; but the right has never been enforced since the maritime successes of that war, and is now practically as dead as if it had been abandoned in the treaty. The same commissioners concluded a commercial treaty with Great Britain, which was in force four years by its terms, and was subsequently extended ten years, and then expired of its own limitation. In that treaty, it was for the first time agreed that no higher or other duties or charges should be imposed in any of the ports of the United States on vessels of another power, than those payable in the same ports by vessels of the United States; that the same duties should be paid on the importation into the United States of any articles, the growth, produce or manufacture of a foreign power, whether such importation should be made in vessels of the United States, or in vessels of that power, and that in all cases where drawbacks were or might be allowed upon the re-exportation of any goods, the growth, produce or manufacture of either country respectively, the amount of the drawback should be the same, whether the goods should have been imported in American vessels, or in vessels of the foreign power. These provisions have often since been inserted in treaties.

III.269.11

—In 1818, a convention was concluded at London for the definition and regulation of the fisheries, and also for the further settlement of disputed boundaries; and a joint occupation of the country west of the Rocky mountains was agreed to. The rights conceded to the United States fishermen by this convention are decidedly less than those conceded by the treaty of 1783, and are expressed in language which has given rise to much contention, the United States contending that it gives the right to fish within the waters of the bay of Fundy and other similar waters, and Great Britain contending otherwise. The treaty was negotiated, on the part of the United States, by two eminent diplomatists, but can not be regarded as a satisfactory solution of a question which is, in fact, difficult of solution. I shall refer later to modifications that have been made in it. The third article, which provided for the joint occupation of the territory west of the Rocky mountains, was, in 1827, extended indefinitely, with a privilege to each to give twelve months' notice of a purpose to abrogate and annul it. The United States gave this notice during President Polk's term. The two powers then concluded the treaty of June 15, 1846, adopting the 49th parallel as their line to the middle of the channel separating the continent from Vancouver's island. It is to be regretted that the Oregon boundary question became entangled in party politics. The great Irish emigration began soon after the settlement of 1846; and the discovery of gold in California carried the stream of population to the shores of the Pacific. We had everything to gain by delaying the settlement, if it was to be done by compromise, as it actually was. But while slavery existed, there was a strong interest to prevent the extension of free territory, and a settlement was forced which can not be called far-seeing or statesmanlike.

III.269.12

—The treaty with Spain of Feb. 22, 1819, closed a long series of diplomatic discussions relating to the boundaries between Louisiana and Florida, to condemnations of American vessels by French consuls within Spanish territories, to the suspension of the right of deposit at New Orleans prior to the acquisition of Louisiana, and to the fitting out, within the United States, of expeditions against Spain in aid of the revolutionary colonists. By the treaty the United States adjusted its southern boundary by the acquisition of Florida, and by an agreement as to the line from the gulf of Mexico to the Pacific; and each party made a general renunciation of claims against the other. As there was little population in Florida, and no settled institutions and form of civilization differing in spirit and in language from that prevailing in the United States, the measure was statesmanlike. It also tended to prolong the rule of the south, which eventually operated, as already explained, to increase the chances for the permanency of our institutions.

III.269.13

—The congress of Panama, convened on the suggestion of Bolivar, aimed to secure military, political and commercial alliances. It failed in all, partly for reasons which make all such attempts quixotic, and partly in consequence of the existence of slavery in some and not in others of the powers. An account of the treaties of the United States would be incomplete without an allusion to the failure of this the most ambitious attempt at negotiations. We did, however, conclude separate treaties of amity and commerce with most of the American states of Spanish or Portuguese origin.

III.269.14

—In 1817 congress framed for the first time a general navigation law, restricting importations to vessels of the United States, or to vessels of the country of the origin of the goods. We find the marks of this legislation in subsequent commercial treaties, in the provision that whatever kind of produce, manufacture or merchandise of any foreign country could be, from time to time, lawfully imported into the United States in their own vessels, might also be imported in the vessels of the other power.

III.269.15

—The extending commerce of the United States also induced the revival of some of the powers respecting our vessels in foreign ports, and foreign vessels in our ports, and disputes of seamen and deserters, which had been conferred upon consuls by Jefferson's convention of 1788 with France. These important provisions were for many years inserted in treaties of commerce. In 1853 Mr. Everett, as secretary of state, negotiated a purely consular convention with France; and, since then, the custom has been to treat of these subjects in special conventions.

III.269.16

—During the administration of Gen. Jackson great progress was made in adjusting private claims growing out of the French revolution. Claims conventions were made with Denmark, the Two Sicilies and France. This policy of solving private international questions by arbitration is well settled in the United States; and was the subject of comment in the French chamber of peers as early as 1831, when the Baron de Barante, discussing the French claims convention of 1831, said of the United States, "Lorsqu' on viole à leur égard les règles de la neutralité, ils ne font pas la guerre. * * Faire rendre justice à leurs citoyens est done un de leurs premier devoirs; et en cela, ils sont plus à imiter qu' à blâmer. De sorte que, sans éclater en hostilités, ils se plaignent, produisent patiemment leurs réclamations; et quand le jour arrive ou l' on a besoin de leur bienveillance, ou leur amitié pourrait être à rechercher, ils profitent de l'occasion, et font solder les créances privées, dont on contestait ou retardait paiement."

III.269.17

—During the administration of President Tyler the northeastern boundary, about which there had for many years been a dispute with Great Britain, which more than once threatened to come to blows, was finally settled by yielding to Great Britain a considerable part of the territory of the state of Maine. The same treaty introduced the policy of joint efforts for the suppression of the slave trade, and contained the only agreement which had then been made, since Jay's treaty, with any power for the surrender of persons charged with the commission of crime. Since then, extradition treaties have been made with most of the powers with which we have diplomatic relations, and the catalogue of crimes upon which the treaties operate has been much extended, as will be seen by comparing the list of crimes in article II. of the treaty of June 13, 1882, with Belgium, with that contained in article X. of the Webster-Ashburton treaty.

III.269.18

—During the administration of Mr. Polk two important political treaties were made. The first placed our commercial relations with China on a treaty basis, and gave us the right of exterritorial jurisdiction within defined limits. The second terminated the war with Mexico by a treaty which annexed California to the United States. The influence of the latter upon the fortunes of the country was instant and decisive. The influence of the former upon the destinies of China is beginning to be apparent.

III.269.19

—During the same administration the first international postal convention was concluded. As early as 1787 France invited the United States to make such a convention. In the reorganization of the government the scheme fell through, and sixty years elapsed before a postal treaty was made. In the course of another thirty years the system was vastly improved, and has become universal.

III.269.20

—The same administration concluded with New Grenada a treaty whereby the United States agreed to guarantee the neutrality of the isthmus of Panama, and the rights of sovereignty and property of New Grenada therein. The United States invited Great Britain in 1849 to join in this guarantee. No answer was given to the invitation; but in April of that year the treaty known as the Clayton-Bulwer treaty was concluded. This treaty has given rise to more questions than it contains articles. Before ratifications were exchanged, a question arose whether it should apply to the Belize. Then discussions were had about the canal to which it should apply, and at the end of two years it was settled that it should apply to the Hise grant. Then Great Britain for some years tried to evade its operation upon the Mosquito Indians. Then it had prolonged negotiations with Nicaragua, Costa Rica and Honduras, in order to dispose of the Indians. By this time the rebellion broke out, and the interest of the United States in the question was suspended. The grant of canal franchises to the French company revived interest in it. Then the United States proposed to abrogate most of the treaty, which Great Britain declined. Then the president, in 1882, informed Great Britain, that the treaty having been made with a view to the construction of a canal under the Hise grant, and the same having become impracticable for causes for which Great Britain alone was responsible, the United States did not regard the treaty as longer binding. The policy of making this treaty has been much questioned; but it certainly dispossessed Great Britain of an important military, naval and political position on the isthmus, at a time when the relative strength of the two powers was very different from what it is now; and, as construed by the United States, it contains no continuing engagements to embarrass us. Judged by these results the measure was wise. When the question was slumbering after a rest of over twenty years, it was revived by the proposition to abrogate the treaty. In spite of the distinguished names supporting that act, I can not but regard it as unwise. The question was not at that moment what is called "a burning question"; it could have rested, perhaps, for many years, before a solution would have been necessary; and meanwhile the relative strength of the two powers was every day changing in our favor.

III.269.21

—In President Pierce's time the adhesion of the United States was asked to the declarations of the congress of Paris, and answer was made that the president proposed to add to the first proposition the words "And that the private property of the subjects or citizens of a belligerent on the high seas shall be exempted from seizure by public armed vessels of the other belligerent, unless it be contraband." This was not acceded to. When the Franco-German war broke out, the French minister notified the secretary of state that in the war France would conform to the declaration of Paris; and the German minister notified him that private property on the high seas would be exempted from seizure by vessels of war, without regard to reciprocity.

III.269.22

—During the same presidential term a treaty was concluded with Great Britain for reciprocity in the free admission of certain enumerated articles between the United States and what is now known as the Dominion of Canada, and for the common enjoyment of the British inland fisheries by both peoples. I can not but regard this as a wise and statesmanlike treaty, which would have led to a nearer political connection with Canada. The war, however, enabled some Canadians to show a spiteful feeling toward us, to which congress responded by the abrogation of the treaty. Since that day Canada has been drifting away from the United States in legislation and policy.

III.269.23

—The United States are founded upon the right of persons at their own election to abandon an old allegiance and acquire a new one. Yet this principle did not receive the formal adhesion of any other power until Feb. 22, 1868, when the naturalization treaty with the North German Union was signed. Since then, similar treaties have been entered into with Bavaria, Mexico, Baden, Würtemberg, Hesse, Belgium, Sweden and Norway, Great Britain, Austria-Hungary, Ecuador and Denmark. The principles recognized in these treaties are, that an agreed term of residence in the new country is necessary before the change of allegiance will be recognized by the old; and that a resumption of residence in the old country without intent to return may be taken to be an abandonment of the acquired citizenship.

III.269.24

—The same period saw a series of agreements made for the protection of trade marks. This arrangement has been made with Russia, Belgium, France, Austria-Hungary, Germany, Spain, Great Britain and Brazil.

III.269.25

—The close of the war left questions pending with Great Britain growing out of captures by vessels of war fitted out on British territory; and claims by Great Britain against the United States on behalf of British subjects injured in their persons or properties by the forces of the United States. There were also differences growing out of alleged interferences with the fishermen of the United States. There was, too, a difference in the construction of the treaty of 1847 for settling the northwestern boundary. That convention required the line, after leaving the mainland, to proceed to the middle of the channel which separates the continent from Vancouver's island, and thence southerly, through the middle of said channel and of Fuca's strait, to the Pacific ocean. There were three channels: the Rosario to the east, the Douglass in the middle, and the Canal de Haro to the west. Both parties agreed that the Douglass was not the main channel. Great Britain claimed the Rosario as that channel; the United States the Canal de Haro. The treaty concluded at Washington on May 8, 1871, was intended to determine all these questions. It provided for a tribunal of arbitration at Geneva for the settlement of the Alabama claims, and laid down three rules for the government of the tribunal, which the two powers agreed to communicate to other powers. It arranged for a claims commission to sit at Washington and decide upon the British claims. It agreed to restore the fishermen of the United States to the rights enjoyed under the abrogated reciprocity treaty, for a term of years for a limited reciprocal commercial arrangement, and the payment of a sum of money to be determined by a joint commission, to sit at Halifax. It provided for common enjoyment of the waters of the lakes and canals; and it referred the settlement of the boundary dispute to the arbitration of the emperor of Germany. In due time these questions were disposed of in the manner provided by the treaty. The decisions, so far as they were adverse to the United States, have been the subject of criticism here; and so far as they were adverse to Great Britain, of criticism there. My own judgment is, that, without dwelling upon details, the prestige and influence of the United States, and the respect in which it was held in other parts of the world, were decidedly increased by this treaty, and by the proceedings which took place under it.

III.269.26

—During President Hayes' term the treaty with China was modified so as to allow the United States to regulate, limit or suspend the coming of Chinese to the United States or their residence here, but not to absolutely prohibit it. Congress exercised this power to the extreme limit allowed by a liberal construction of the treaty. During the same term a convention was proclaimed which had been concluded during the presidency of Gen. Grant, providing for the establishment of an international bureau of weights and measures; and a convention was concluded with the emperor of Morocco and the principal powers of Europe for the purpose of better defining the right of protection of Christian powers in that Mussulman kingdom.

III.269.27

—In President Arthur's time the United States have acceded to the international convention for the amelioration of the wounded in armies in the field; and a general treaty of friendship and commerce has been concluded with Mad agascar.

III.269.28

—The collection of treaties made in 1873, and revised in 1876, contains, in all, 255 instruments. Twenty-nine have since been added to it. Of the whole 284 some have become entirely obsolete, others in part so, either through their own limitation, by agreement of parties, by notice given by one party to terminate, by absorption of the contracting party into another nationality, by effect of war, or by act of congress. A reference to the notes to that collection will give information in detail on these points.

III.269.29

—A treaty made under authority of the United States is, under the constitution, in common with laws made in pursuance of the constitution, the supreme law of the land. It is subject to the constitution, and is inoperative when conflicting with it. It overrides all state laws in conflict with it. It overrides all laws of the United States in conflict with it and anterior to it; but, within the territory of the United States, and in its operation upon officers of the United States, it is controlled by laws enacted by congress after its conclusion. For municipal purposes it ceases to be law; internationally the duty of observing it is not weakened by municipal law.

III.269.30

—One thing more is to be remarked. Our treaties in two languages, with powers not using the English language, have rarely been the subject of contention as to construction. On the other hand, we have made few treaties with Great Britain, with which we use the English language in common, the construction of which has not been more or less in dispute.

III.269.31

—During the revolution, and up to the adoption of the constitution, it was the custom to make the agreements of the United States with Indian tribes in the form of treaties. This practice was continued under the new form of government. The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among the powers which are capable of making treaties. Nevertheless, such treaties are not the treaties which form the subject of this article.

The cuneiform inscription in the Liberty Fund logo is the earliest-known written appearance of the word "freedom" (amagi), or "liberty." It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash.